DA loses bid for TV station's unaired videos

However, judge does order KPRC to release tapes of other reports

By DALE LEZON
Copyright 2006 Houston Chronicle

Lamenting what he considers an erosion of constitutional protections for the news media, a judge blocked the Harris County District Attorney's Office from making a Houston TV station turn over video footage from a news report that was never aired.

State District Judge Mark Kent Ellis did, however, order KPRC (Channel 2) to hand over video related to two other reports that were broadcast, including some unaired footage.

"Ever since the Constitution was issued, it's been chipped away at," Ellis said Tuesday in a hearing on KPRC's motion to quash a grand jury subpoena for the material. "I'm sympathetic with the needs of a press to be free."

Assistant District Attorney Valerie Turner said after the hearing that she respected Ellis' decision but was not pleased about it. She said she doesn't expect an appeal.

KPRC attorney Thomas Forestier was pleased.

"We consider it to be a huge victory," he said.

Some media experts expressed concern that a judge was asked to determine what a news organization had to reveal to law enforcement, saying the media's ability to operate as a government watchdog could be threatened. They said sources could be discouraged from talking with reporters about government wrongdoing, for instance, if they think their names can be turned over to police.

"Citizens should be very nervous anytime that courts are ordering news organizations to hand anything over," said Tom Rosenstiel, director of the Project for Excellence in Journalism at Columbia University's School of Journalism in New York.

The station should be relieved that it doesn't have to turn over all unaired video, but it should not feel completely protected, said Lucy Dalglish, executive director of the Reporters Committee for Freedom of the Press.

"I'd be feeling kind of nervous," she said.

Amy Ridenour, president of the National Center for Public Policy Research, a think tank in Washington, D.C., said KPRC should have turned over all of the material without waiting for a subpoena. Such cooperation is necessary to protect people from crime, she said.

The District Attorney's Office had subpoenaed KPRC for videotapes connected to two investigative reports. One was a broadcast segment about a man who offered dogs on consignment while the other was unaired, unedited video about possibly predatory home loans.

KPRC officials refused to hand the tapes over, but said prosecutors could watch them and take notes. They also gave prosecutors names and information about those interviewed so they could be contacted.

Turner said she needed the material � not just notes from it � for investigations and to prepare for a possible trial. Rosenstiel said he found it troubling that prosecutors subpoenaed the material even though the station had volunteered to show it to them.

At Tuesday's hearing, Ellis said an unaired interview with the businessman in the dog-consignment story should be turned over because the story was aired. He also said that some of the home-loan video should be turned over because it included an interview with a homeowner who said her contractor had not completed work he had promised. Although the home-loan report was not aired, much of the woman's interview was broadcast in a story about the contractor.

Though saying unaired material about the alleged home-loan scam was protected, Ellis said prosecutors may want to ask him to reconsider the issue after their investigation has progressed. He added that they should watch the video. Turner said after the hearing that she may have to battle for the tapes again if the matter goes to trial.

"We have some of what we need and we're hoping that, down the line, the judge will help us a little bit," she said.

Maybe "pandering" is too harsh. It could be he is simply grossly ignorant of both the law and American history. In which case, he is merely a buffoon and a fool, but not a panderer.